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[Prefatory Note: “Palestine’s Dilemma: To Go or Not to Go to the International Criminal Court” was published on July 13, 2014 on the website of Middle East Eye, a site I strong recommend to all those with an interest in Middle East issues; this post represents a somewhat revised text, but within the framework of the original; the political plausibility of invoking the Inteernational Criminal Court to investigate allegations of criminality directed at Israel increases with each passing day.)

Ever since this latest Israeli major military operation against Gaza started on July 8, there have been frequent suggestions that Israel is guilty of war crimes, and that Palestine should do its best to activate the International Criminal Court (ICC) on its behalf. The evidence overwhelmingly supports basic Palestinian allegations—Israel is guilty either of aggression in violation of the UN Charter or is in flagrant violation of its obligations as the Occupying Power under the Geneva Convention to protect the civilian population of an Occupied People; Israel seems guilty of using excessive and disproportionate force against a defenseless society in the Gaza Strip; and Israel, among an array of other offenses, seems guilty of committing Crimes Against Humanity in the form of imposing an apartheid regime in the West Bank and through the transfer of population to an occupied territory as it has proceeded with its massive settlement project.

Considering this background of apparent Israeli criminality it would seem a no brainer for the Palestinian Authority to seek the help of the ICC in waging its struggle to win over world public opinion to their side. After all, the Palestinians are without military or diplomatic capabilities to oppose Israel, and it is on law, global solidarity, and their own creative and brave resistance that the Palestinian people must rest their hopes for eventually realizing their rights, particularly the right of self-determination and the right of return. Palestinian demonstrators in the West Bank are demanding that their leaders in the Palestinian Authority adhere to the Rome Statute, and become members of the ICC without further delay. It has become part of the message of Palestinian street politics that the Palestinians are being criminally victimized, and that the Palestinian Authority if it wants to retain the slightest shred of respect as representatives of the Palestinian people must join in this understanding of the Palestinian plight and stop ‘playing nice’ with Israeli authorities.

Such reasoning from a Palestinian perspective is reinforced by the May 8th letter sent by 17 respected human rights NGOs to President Mahmoud Abbas urging Palestine to become a member of the ICC, and act to end Israel’s impunity. This was not a grandstanding gesture dreamed up on the irresponsible political margins of liberal Western society. Among the signatories were such human rights stalwarts as Human Rights Watch, Amnesty International, Al Haq, and the International Commission of Jurists, entities known for their temporizing prudence in relation to the powers that be.

Adding further credence to the idea that the ICC option should be explored was the intense opposition by Israel and United States, ominously threatening the PA with dire consequences if it tried to join the ICC, much less to seek justice through its activating its investigative procedures. The American ambassador to the UN, Samantha Power, herself long ago prominent as a human rights advocate, revealed Washington’s nervous hand when she confessed that the ICC “is something that really poses a profound threat to Israel.” I am not sure that Power would like to live with the idea that because Israel is so vulnerable to mounting a legal challenge that its impunity must be upheld whatever the embarrassment to Washington of doing so. France and Germany have been more circumspect, saying absurdly that recourse to the ICC by Palestine should be avoided because it would disrupt ‘the final status negotiations,’ as if this pseudo-diplomacy was ever of any of value, a chimera if there ever was one, in the elusive quest for a just peace.

In a better world, the PA would not hesitate to invoke the authority of the ICC, but in the world as it is, the decision is not so simple. To begin with, is the question of access, which is limited to states. Back in 2009, the PA tried to adhere to the Rome Statute, which is the treaty governing the ICC, and was rebuffed by the prosecutor who turned the issue over to the Security Council, claiming a lack of authority to determine whether the PA represented a ‘state.’ Subsequently, on November 29, 2012 the UN General Assembly overwhelmingly recognized Palestine as ‘a nonmember observer state.’ Luis Moreno–Ocampo who had acted in 2009 for the ICC, and now speaking as the former prosecutor, asserted that in his opinion Palestine would now in view of the General Assembly action qualify as a state enjoying the option of becoming an ICC member. Normally, ICC jurisdiction is limited to crimes committed after the state becomes a member, but there is a provision that enables a declaration to be made accepting jurisdiction for crimes committed at any date in its territory so long as it is after the ICC itself was established in 2002.

Is this enough? Israel has never become a party to the Rome Statute setting up the ICC, and would certainly refuse to cooperate with a prosecutor who sought to investigate war crimes charges with the possible intention of prosecution. In this regard, recourse to ICC might appear to be futile as even if arrest warrants were to be issued by the court, as was done in relation to Qaddafi and his son in 2011, there would be no prospect that the accused Israeli political and military figures would be handed over, and without the presence of such defendants in the court at The Hague, a criminal trial cannot go forward. This illustrates a basic problem with the enforcement of international criminal law. It has been effective only against the losers in wars fought against the interests of the West and, to some extent, against those whose crimes are in countries located in sub-Saharan Africa. This biased form of international criminal law implementation has been the pattern since the first major effort was made after World War II at Nuremberg and Tokyo. Surviving German and Japanese leaders were prosecuted for their crimes while exempting the winners, despite Allied responsibility for the systematic bombing of civilian populations by way of strategic bombing and the American responsibility for dropping atomic bombs on the heavily populated cities of Hiroshima and Nagasaki.

Unfortunately, up to this time the ICC has not been able to get rid of this legacy of ‘victors’ justice,’ which has harmed its credibility and reputation. All ICC cases so far have involved accused from sub-Saharan African countries. The refusal of the ICC to investigate allegations of war crimes of the aggressors in relation the Iraq War of 2003 is a dramatic confirmation that leading states, especially the United States, possess a geopolitical veto over what the ICC can do. The ICC failure to investigate the crimes of Bush and Blair, as well as their entourage of complicit top officials, vividly shows the operations of double standards. Perhaps, the climate of opinion has evolved to the point where there would be an impulse to investigate the charges against Israel even if procedural obstacles preventing the case from being carried to completion. Any serious attempt to investigate the criminal accountability of Israeli political and military leaders would add legitimacy to the Palestinian struggle, and might have a positive spillover effect on the global solidarity movement and the intensifying BDS campaign.

Yet there are other roadblocks. First of all, the PA would definitely have to be prepared to deal with the wrath of Israel, undoubtedly supported by the United States and more blandly by several European countries. The push back could go in either of two directions: Israel formally annexing most or all of the West Bank, which it seems determined to do in any event, or more likely in the short run, withholding the transfer of funds needed by the PA to support its governmental operations. The U.S. Congress would be certain to follow the lead of Tel Aviv even if the Obama presidency might be more inclined to limit its opposition to a diplomatic slap on the PA wrist as it did recently in reacting to the June formation of the interim unity government, an important step toward reconciling Fatah and Hamas, and overcoming the fragmentation that has hampered Palestinian representation in international venues in recent years.

A second potential obstacle concerns the jurisdictional authority of the ICC, which extends to all war crimes committed on the territory of a treaty member, which means that leaders of Hamas would also likely be investigated and indicted for their reliance on indiscriminate rockets aimed in the direction of Israeli civilian targets.There is even speculation that given the politics of the ICC such that crimes alleged against Hamas might be exclusively pursued.

If we assume that these obstacles have been considered, and Palestine still wants to go ahead with efforts to activate the investigation of war crimes in Gaza, but also in the rest of occupied Palestine, what then? And assume further, that the ICC reacts responsibly, and gives the bulk of its attention to the allegations directed against Israel, the political actor that controls most aspects of the relationship. There are several major crimes against humanity enumerated in Articles 5-9 of the Rome Statute for which there exists abundant evidence as to make indictment and conviction of Israeli leaders all but inevitable if Palestine uses its privilege to activate an investigation and somehow is able to produce the defendants to face trial: reliance on excessive force, imposing an apartheid regime, collective punishment, population transfers in relations to settlements, maintenance of the separation wall in Palestine.

The underlying criminality of the recent aggression associated with Protective Edge (Israel’s name for its 2014 attack on Gaza) cannot be investigated at this point by the ICC, and this seriously limits its authority. It was only in 2010 that an amendment was adopted by the required 2/3 majority of the 122 treaty members on an agreed definition of aggression, but it will not become operative until 2017. In this respect, there is a big hole in the coverage of war crimes currently under the authority of the ICC.

Despite all these problems, recourse to the ICC remains a valuable trump card in the thin PA deck, and playing it might begin to change the balance of forces bearing on the conflict that has for decades now denied the Palestinian people their basic rights under international law. If this should happen, it would also be a great challenge to and opportunity for the ICC finally to override the geopolitical veto that has so far kept criminal accountability within the tight circle of ‘victors’ justice’ and hence only accorded the peoples of the world a very power-laden and biased experience of justice.

This post is a corrected and modified version of my earlier text with the same title; this version is published in AJE today, 1 May 2012

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From all that we know Charles Taylor deserves to be held criminally accountable for his role in the atrocities committed in Sierra Leone during the period 1998-2002. Taylor was then President of Liberia, and did his best to encourage violent uprisings against the governments in neighboring countries so as to finance his own bloody schemes and extend his regional influence. It was in Sierra Leone that ‘blood diamonds,’ later more judiciously called ‘conflict diamonds’ were to be found in such abundance as to enter into the lucrative world trade, with many of these diamonds finding their way eventually onto the shelves of such signature jewelry stores as Cartier, Bulgari, and Harry Winston, and thereby circumventing some rather weak international initiatives designed to protect what was then considered the legitimate diamond trade.

It is fine that Charles Taylor was convicted of 11 counts of aiding and abetting war crimes and crimes against humanity of the rebel militias that committed atrocities of an unspeakable nature, and that he will be sentenced in early May. And it may further impress liberal commentators that fair legal procedures and diligent judicial oversight led to Taylor’s acquittal with respect to the more serious charges of ‘command responsibility’ or ‘joint criminal enterprise.’ Surely, the circumstantial evidence sufficiently implicated Taylor in a knowing micromanaging of the crimes that it would have seemed reasonable to hold him criminally responsible for the acts performed, and not just for aiding and abetting in their commission. I share the view that it is desirable to lean over backwards to establish a reputation of fairness in dealing with accusations under international criminal law. It is better not to convict defendants involving crimes of state when strong evidence is absent to uphold specific charges beyond any reasonable doubt. In this respect, the Taylor conviction seems restrained, professional, and not vindictive or politically motivated.

But as Christine Cheng has shown in a perceptive article published online in Al Jazeera (27 April 2012) there are some elements of this conviction that feed the suspicion that the West is up to its old hypocritical tricks of seizing the high moral ground while pursuing its own exploitative economic and geopolitical goals that obstruct the political independence and sovereignty of countries that were once their colonies. As Cheng points out the financing of the Special Court on Sierra Leone was almost totally handled by the United States, United Kingdom, the Netherlands, and Canada. In addition, there were pragmatic reasons to make sure that Taylor was never allowed to return to Liberia where he retained a strong following. It was feared that if Taylor was back in Liberia he would likely again foment trouble in the Liberian sub-region, and this would make it impossible to restore stability, and begin ‘legitimate’ mining operations, which is what the West apparently wanted to have happen in Sierra Leone.

What is dramatically ironic about the whole picture is that the United States is the number one advocate of international criminal justice for others. President Obama has even taken the unprecedented step on 23 April 2012 of establishing an Atrocity Prevention Board under the authority of the National Security Council, and headed by Samantha Power a prominent human rights activist that has been serving in his administration. In his speech of 23 April at the U.S. Holocaust Memorial Museum announcing the formation of the Board Obama said that atrocity prevention and response was a ‘core national interest of and core moral responsibility’ of the United States. It is hard to fault such an initiative in light of the faltering American (and UN) response to recent allegations of mass atrocity in Syria and Sudan, and against the background of refusing to be more pro-active back in 1994 as a grotesque and preventable genocide unfolded in Rwanda. At the same time, there is an impression, the essence of the liberal mentality, of Uncle Sam surveying the world with a blinkered vision, seeing all that is horrible while overlooking his own deeds and those of such friends as Israel or Bahrain.

Heeding the sound of one hand clapping it might be well to remember that the United States more than any country in the world holds itself self-righteously aloof from accountability on the main ground that any international judicial process might be tainted by politicized motivations! Congress has even threatened that it would use military force to rescue any Americans that were somehow called to account by the International Criminal Court in The Hague, and has signed agreements with over 100 governments pledging them not to hand over American citizens to the ICC. And yet it is American international criminal lawyers and human rights NGOs that have been most loudly applauding the outcome in the Taylor case, without even a whimper of acknowledgement that there may be some issues relating to double standards. If international criminal adjudication is so benevolent when prominent Africans are convicted, why does the same not hold for Americans? Given the structure of influence in the world there exists more reason for Africans to be suspicious of such procedures than Americans who fund such efforts, and are so influential behind the scenes.

If aiding and abetting is what the evidence demonstrates, then should there not be at least discussion of whether international diamond merchants and jewelry retailers making huge profits by selling these tainted diamonds should not have investigated, and even prosecuted? There was a voluntary, self-regulating certification procedure was established, the Kimberly Process (2001) named after the city in South Africa where the meeting of concerned governments, corporate leaders, and civil society representatives took place. This joint initiative was especially pushed by large diamond sellers, such as the notorious De Beers cartel of South Africa, that were distressed by the downward effect on world prices by the availability of blood diamonds. A British NGO, Global Witness, reports that almost none of the prominent diamond retailers took any notice of this cooperative effort to restrict the flow of blood diamonds, and seemingly purchased diamonds at the lowest price without inquiring too much as to their origins or complying with the certification requirement established by the Kimberly Process. The latter process was partly developed to avoid a civil society backlash protesting this indirect support of atrocities, as well as protect the market shares and control of the established international companies that had long dominated the lucrative trade in diamonds. But isn’t revealing that Western corporations are asked to act in a morally responsible manner by way of a voluntary undertaking while political leaders of sovereign states in Africa are subject to the draconian rigor of international criminal law?

These issues are absent from the Western public discourse. Take the self-satisfied editorial appearing in the Financial Times (April 27, 2012). It starts with words affirming the larger meaning of Taylor’s conviction: “A strong message was sent to tyrants and warlords around the world yesterday. International law may be slow, but even those in the higher ranks of power can be held to account for atrocities committed against the innocent.” And the editorially ends even more triumphantly, and without noticing the elephant standing in the middle of the room, that leaders “..in states weak and strong—now know that there can be no impunity for national leaders when it comes to human rights.” Such language needs to be decoded to convey its real message as follows: “national leaders of non-Western countries should realize that if their operations henceforth stand interfere with geopolitical priorities, they might well be held criminally responsible.”

There are several observations that follow: (1) if non-Western leaders are supportive of Western interests, their atrocities will be overlooked, but if there is a direct confrontation, then the liberal establishment will be encouraged to start ‘war crimes talk’ (thus Milosevic, Saddam Hussein, and Qaddafi (with the latter killed before proceedings couild be initiated) were charged with crimes, while the crimes of those governing Bahrain, Saudi Arabia, and Israel[1] were ignored); (2) the great majority of cases dealing with international crimes have been up to this point are associated with events and alleged criminality in sub-Saharan Africa, confirming the extent to which this region has been devastated by bitter conflicts, many of which are attributable to the remnants of colonialism (divide and rule; slave trade; arbitrary boundaries separating tribal and ethnic communities; apartheid; continuing quest for valuable mineral resources by international business interests); (3) the Western mind is trained not to notice, much less acknowledge, either the historical responsibility of the colonial powers or the unwillingness of the West to submit to the same accountability procedures that are being relied upon to impose criminal responsibility on those who are perceived to be blocking Western economic and political interests.

The United States is particularly vulnerable from these perspectives. When we hear the names of Guantanamo Bay and Abu Ghraib the immediate association is with American war crimes. When American leaders openly endorse reliance on interrogation techniques that are generally condemned as ‘torture’ we should be commenting harshly on the wide chasm separating ‘law’ from its consistent implementation. When a soldier, such as Bradley Manning, exposes the atrocities of the Iraq and Afghanistan wars he is held in humiliating prison circumstances and prosecuted for breaching secrecy, with suggestions that his intent was ‘treasonous,’ that is, intended to help enemies. At least, if there was a measure of good faith in Washington, it should have been possible to move forward on parallel paths: hold Manning nominally responsible for releasing classified materials, mitigated by his motives and absence of private gain, but vigorously repudiate and investigate the horrible crimes being committed against civilians in Iraq and Afghanistan, as well as the battlefield practices and training programs that give rise to such atrocities.

The Western powers have gone significantly further in sculpting international law to their liking. They have excluded ‘aggressive war’ from the list of international crimes contained in the Rome Treaty that governs the scope of ICC jurisdiction. When the defendants were the losers in World War II, aggressive war was treated at Nuremberg (and Tokyo) as the supreme war crime as it was declared to encompass the others, war crimes and crimes against humanity. The UN Charter was drafted to reflect this outlook by unconditionally prohibiting any recourse to force by a state except in self-defense narrowly defined as a response to a prior armed attack. But in the decades that followed each of the countries that sat in judgment at Nuremberg engaged in aggressive war and made non-defensive uses of force, and so the concept became too contested by practice to be any longer codified as law. This reversal and regression exemplifies the Janus face of geopolitics when it comes to criminal accountability: when the application of international criminal law serves the cause of the powerful, it will be invoked, extended, celebrated, even institutionalized, but only so long as it is not turned against the powerful. One face of Janus is that of international justice and the rule of law, the other is one of a martial look that glorifies the rule of power on behalf of the war gods.

Where does this line of reasoning end? Should we be hypocrites and punish those whose crimes offend the geopolitical gatekeepers? Or should we insist that law to be law must be applied consistently? At least these questions should be asked, inviting a spirit of humility to emerge, especially among liberals in the West.

[1] Of course, Israel is only geographically non-Western, and its leadership enjoys the same kind of impunity available to American leaders and those of allied countries.

This post is modified version of a text published by Al Jazeera a few days ago. It is a sequel to the piece entitled “Toward a Jurisprudence of Conscience,” and will be followed by an assessment of the Russell Tribunal on Palestine session in Cape Town, South Africa investigating the allegations that Israel is guilty of imposing apartheid on the Palestinian people, considered by the Rome Treaty framework of the International Criminal Court to be a crime against humanity.

In Kuala Lumpur, after two years of investigation by the Kuala Lumpur War Crimes Commission (KLWCC), a tribunal (Kuala Lumpur War Crimes Tribunal or KLWCT) consisting of five judges with judicial and academic backgrounds reached a unanimous verdict that found George W. Bush and Tony Blair guilty of crimes against peace, crimes against humanity, and genocide as a result of initiating the Iraq War in 2003, and in the course of maintaining the subsequent occupation. The proceedings took place over a four day period from November 19-22, and included an opportunity for court appointed defense counsel to offer the tribunal arguments and evidence on behalf of the absent defendants who had been invited to offer their own defense or send a representative, but declined to do so. The prosecution team was headed by two prominent legal personalities with strong professional legal credentials: Gurdeal Singh Nijar and Francis Boyle. The verdict issued on November 22, 2011 happens to coincide with the 48th anniversary of the assassination of John F. Kennedy.

The tribunal acknowledged that its verdict was not enforceable in a normal manner associated with a criminal court operating within a sovereign state or as constituted by international agreement as is the case with the International Criminal Court or by acts of the United Nations as occurred in the establishment of the ad hoc International Criminal Tribunal for former Yugoslavia. But the KLWCT by following a juridical procedure purported to be operating in a legally responsible manner, which would endow its findings and recommendations with a legal weight that seems expected to extend beyond a moral condemnation of the defendants, but in a manner that is not entirely evident.

The KLWCT added two ‘Orders’ to its verdict that had been adopted in accordance with the charter of the KLWCC that controlled the operating framework of the tribunal: 1) Report the findings of guilt of the two accused former heads of state to the International Criminal Court in The Hague; 2) Enter the names of Bush and Blair in the Register of War Criminals maintained by the KLWCC.

The tribunal these Orders by adding recommendations to its verdict: 1) Report findings in accord with Part VI (calling for future accountability) of the Nuremberg Judgment of 1945 addressing crimes of surviving political and military leaders of Nazi Germany; 2) File reports of genocide and crimes against humanity at the International Criminal Court in The Hague; 3) Approach the UN General Assembly to pass a resolution demanding that the United States end its occupation of Iraq; 4) Communicate the findings of the tribunal to all members of the Rome Statute (governing the International Criminal Court) and to all states asserting Universal Jurisdiction that allows for the prosecution of international crimes in national courts; 5) Urge the UN Security Council to take responsibility to ensure that full sovereign rights are vested in the people of Iraq and that the independence of its government be protected by a UN peacekeeping force.

These civil society legal initiatives are an outgrowth of a longer term project undertaken by the controversial former Malaysian head of state, Mahathir Mohamed, to challenge American-led militarism and to mobilize the global south to mount an all out struggle against the war system. This vision of a revitalized struggle against war and post-colonial imperialism was comprehensively set forth in Mahathir’s remarkable anti-war speech of February 24, 2003, while still Prime Minister, welcoming the Non-Aligned Movement to Kuala Lumpur for its XIIIth Summit. Included in his remarks on this occasion were the following assertions that prefigure the establishment of the KLWCC and KLWCT: “War must be outlawed. That will have to be our struggle for now. We must struggle for justice and freedom from oppression, from economic hegemony. But we must remove the threat of war first. With this Sword of Democles hanging over our heads we can never succeed in advancing the interests of our countries. War must therefore be made illegal. The enforcement of this must be by multilateral forces under the control of the United Nations. No single nation should be allowed to police the world, least of all to decide what action to take, [and] when.” Mahathir stated clearly on that occasion that his intention in criminalizing the behavior of aggressive war making and crimes against humanity was to bring relief to victimized peoples with special reference to the Iraqis who were about to be attacked a few weeks later and the Palestinians who had long endured mass dispossession and an oppressive occupation. This dedication of Mahathir to a world without war was reaffirmed through the establishment of the Kuala Lumpur Foundation to Criminalize War, and his impassioned inaugural speech opening a Criminalizing War Conference on October 28, 2009.

On February 13, 2007 Mahathir called on the KLWCC to prepare a case against Bush and Blair whom he held responsible for waging aggressive warfare against Iraq. Mahathir, an outspoken critic of the Iraq War and its aftermath, argued at the time that there existed a need for an alternative judicial forum to the ICC, which was unwilling to indict Western leaders, and he was in effect insisting that no leader should any longer be able to escape accountability for such crimes against nations and peoples. He acknowledged with savage irony the limits of his proposed initiative: “We cannot arrest them, we cannot detain them, and we cannot hang them the way they hanged Saddam Hussein.” Mahathir also contended that “The one punishment that most leaders are afraid of is to go down in history with a certain label attached to them..In history books they should be written down as war criminals and this is the kind of punishment we can make to them.” With this remark Mahathir prefigured the KLWCC register of war criminals that has inscribed the names of those convicted by the KLWCT. Will it matter?

Does such a listing have traction in our world? Will future leaders even know about such a stigmatizing procedure? I think civil society is challenged to

do its best to build ‘negative’ monuments in the public squares of global consciousness constructed with a deliberate intent to disgrace those guilty of crimes against peace and crimes against humanity. For too long our public squares have been adorned with heroes of war!

In his 2007 statement Mahathir promised that a future KLWCT would not in his words be “like the ‘kangaroo court’ that tried Saddam.” Truly, the courtroom proceedings against Saddam Hussein was a sham trial excluding much relevant evidence, disallowing any meaningful defense, culminating in a grotesque and discrediting execution. Saddam Hussein was subject to prosecution for multiple crimes against humanity, as well crimes against the peace, but the formally ‘correct’ trappings of a trial could not obscure the fact that this was a disgraceful instance of ‘victors’ justice. Of course, the media, to the extent that it notices civil society initiatives at all condemns them in precisely the same rhetoric that Mahathir used to attack the Saddam trial, insisting that the KLWCT is ‘a kangaroo court,’ ‘a circus,’ a theater piece with pre-assigned roles.

The KLWCT did I think make a mistake by establishing a defense team for Bush and Blair, and then failing to present their best possible arguments. Instead, a sheepish defense based on their acknowledging human failings for engaging in criminal conduct did create an impression that this ‘tribunal’ was not assessing the legal merits of the charges, but merely in reinforcing the preordained guilt of these particular individuals. In reporting on the defense effort, the following excerpt is illustrative of this self-discrediting as aspect of the approach taken by the KLWCT: “Lead Defense Counsel continued, ‘Had George W. Bush said ‘we know who you are, we know what you did, and we forgive you,’ the world could have been a much different place. But, instead, Afghanistan, Iraq, Guantanamo happened. We are fallible human beings. We make mistakes. And the Defense stated that the defense of Bush and Blair defense is that the accused ‘are human.’” Such a mock atonement, which does not correspond with the continuing effort of these former leaders to justify their Iraq War policy, was entirely inappropriate and erodes both the persuasiveness and credibility of the undertaking. It may be that an empty chair would have been the most suitable way to acknowledge the absence of the defendants from the courtroom, despite being given an opportunity to

present their best defense, or if it was decided to mount a defense on their behalf, then it should have done as skillfully and persuasively as possible.

The KLWCT has already announced a subsequent session devoted to the torture allegations directed at such American political leaders as former Vice President, Dick Cheney, and former Secretary of Defense, Donald Rumsfeld. Hopefully, the question of how to handle absent defendants will be handled in a better manner. The basic choice is whether to mount a genuine defense or to forego a defense on the belief that the purpose of the tribunal is to document the allegations and to pass judgment in overcome the refusal of governmental and inter-governmental judicial institutions to address such geopolitically sensitive issues. It is not clear whether the KLWCT effort to imitate the criminal procedures of tribunals constituted by the state system if the best model for these civil society initiatives. Perhaps, it is time to evolve a distinctive language, norms, institutions, and procedures that

reflect both the populist foundations of a jurisprudence of conscience.

Although receiving extensive local coverage, Western media without exception has ignored this proceeding against Bush and Blair, presumably considering it as irrelevant and a travesty on the law, while giving considerable attention to the almost concurrent UN-backed Cambodia War Crimes Tribunal prosecuting surviving Khmer Rouge operatives accused of genocidal behavior in the 1970s. For the global media, the auspices make all the difference.

Universal Jurisdiction

The KLWCT did not occur entirely in a jurisprudential vacuum. It has long been acknowledged that domestic criminal courts can exercise Universal Jurisdiction for crimes of state wherever these may occur, although usually only if the accused individuals are physically present in the court. In American law the Alien Tort Claims Act allows civil actions provided personal jurisdiction of the defendant is obtained for crimes such as torture committed outside of the United States. The most influential example was the 1980 Filartiga decision awarding damages to a victim of torture in autocratic Paraguay (Filartiga v. Peña 620 F2d 876). That is, there is a sense that national tribunals have the legal authority to prosecute individuals accused of war crimes wherever in the world the alleged criminality took place. The underlying legal theory is based on the recognition of the limited capacity of international criminal trials to impose accountability in a manner that is not entirely dictated by geopolitical priorities and reflective of a logic of impunity. In this regard, UJ has the potential to treat equals equally, and is very threatening to the Kissingers and Rumsfelds of this world, who have curtailed their travel schedules. The United States and Israel have used their diplomatic leverage to roll back UJ authority in Europe, especially the United Kingdom and Belgium.

The Move to Civil Society Tribunals

To a certain extent, the KLWCT is taking a parallel path to criminal accountability. It does not purport to have the capacity to exert bodily punishment or impose a financial penalty, and rather stakes its claims to effectiveness on publicity, education, and symbolic justice. Such initiatives have been undertaken from time to time since the Russell Tribunal of 1966-67 to address criminal allegations arising out of the Vietnam War whenever there exists public outrage and an absence of an appropriate response by governments or the institutions of international society. The Lelio Basso Foundation in Rome established in 1976 a Permanent Peoples Tribunal (PPT) that generalized on the Russell experience. It was founded on the belief that there was an urgent need to fill the institutional gap in the administration of justice worldwide that resulted from geopolitical manipulation and resulting formal legal regimes of ‘double standards.’ Over the next several decades, the PPT addressed a series of issues ranging from allegations of American intervention in Central America and Soviet intervention in Afghanistan to contentions about the denial of human rights in the Marcos dictatorship in the Philippines, the dispossession of Indian communities in Amazonia, and the denial of the right of self-determination to the Puerto Rican people.

The most direct precedent for KLWCT was World Tribunal on Iraq held in Istanbul (WTI) in 2005, culminating a worldwide series of hearings carried on between 2003-2005 on various aspects of the Iraq War. As with KLWCT it also focused on the alleged criminality of those who embarked on the Iraq War. WTI proceedings featured many expert witnesses, and produced a judgment that condemned Bush and Blair among others, and called for a variety of symbolic and societal implementation measures. The jury Declaration of Conscience included this general language: “The invasion and occupation of Iraq was and is illegal. The reasons given by the US and UK governments for the invasion and occupation of Iraq in March 2003 have proven to be false. Much evidence supports the conclusion that a major motive for the war was to control and dominate the Middle East and its vast reserves of oil as a part of the US drive for global hegemony… In pursuit of their agenda of empire, the Bush and Blair governments blatantly ignored the massive opposition to the war expressed by millions of people around the world. They embarked upon one of the most unjust, immoral, and cowardly wars in history.” Unlike KLWCT the tone and substance of the formal outcome of the Iraq War Tribunal was moral and political rather than strictly legal, despite the legal framing of the inquiry. For a full account see Muge Gursoy Sokmen, World Tribunal on Iraq: Making the Case Against War (2008).

Justifying Tribunals of Popular Justice and Public Conscience

Two weeks before the KLWCT, a comparable initiative in South Africa was considering allegations of apartheid directed at Israel in relation to dispossession of Palestinians and the occupation of a portion of historic Palestine (Russell Tribunal on Palestine, South African Session, 5-7 November 2011). All these ‘juridical’ events had one thing in common: the world system of states and institutions was unwilling to look a particular set of facts in the eye, and respond effectively to what many qualified and concerned persons believed to be a gross historical and actual circumstance of injustice. In this regard there was an intense ethical and political motivation behind these civil society initiatives that invoked the authority of law. But do these initiatives really qualify as ‘law’? A response to such a question depends on whether the formal procedures of sovereign states, and their indirect progeny—international institutions—are given a monopoly over the legal administration of justice. I would side with those that believe that people are the ultimate source of legal authority, and have the right to act on their own when governmental procedures, as in these situations, are so inhibited by geopolitics that they fail to address severe violations of international law.

Beyond this, we should not neglect the documentary record compiled by these civil society initiatives operating with meager resources. Their allegations are almost always exhibit an objective understanding of available evidence and applicable law, although unlike governmental procedures this assessment is effectively made prior to the initiation of the proceeding. It is this advance assurance of criminality that provides the motivation for making the formidable organizational and fundraising effort needed to bring such an initiative into play. But is this advance knowledge of the outcome so different from war crimes proceedings under governmental auspices? Indictments are made in high profile war crimes cases only when the evidence of guilt is overwhelming and decisive, and the outcome of adjudication is known as a matter of virtual certainty before the proceedings commence. In both instances the tribunal is not really trying to determine guilt or innocence, but rather is intent on providing the evidence and reasoning that validates and illuminates a verdict of guilt and resulting recommendations in one instance and criminal punishment in the other. It is of course impossible for civil society tribunals to enforce their outcomes in any conventional sense. Their challenge is rather to disseminate the judgment as widely and effectively as possible. A PPT publication in book form of its extensive testimony and evidence providing the ethical, factual, and legal rationale for its verdict proved sometimes to be surprisingly influential. This was reportedly the case in exposing and generating oppositional activism in the Philippines in the early 1980s during the latter years of the Marcos regime.

The Legalism of the KLWCT

The KLWCT has its own distinctive identity. First of all, the imprint of an influential former head of state in the country where the tribunal was convened gave the whole undertaking a quasi-governmental character. It also took account of Mahathir’s wider campaign against war in general. Secondly, the assessing body of the tribunal was composed of five distinguished jurists, including judges, from Malaysia imparting an additional sense of professionalism. The Chief Judge was Abdel Kadir Salaiman, a former judge of Malaysia’s federal court. Two other persons who were announced as judges were recused at the outset of the proceedings, one because of supposed bias associated with prior involvement in a similar proceeding, and another due to illness. Thirdly, there was a competent defense team that presented arguments intended to exonerate the defendants Bush and Blair, although the quality of the legal arguments offered was not as cogent as the evidence allowed.

Fourthly, the tribunal operated in rather strict accordance with a charter that had been earlier adopted by the KLWCC, and imparted a legalistic tone to the proceedings. It is this claim of legalism that is the most distinctive feature of the KLWCT in relation to comparable undertakings that rely more on an unprofessional and loose application of law by widely known moral authority personalities and culturally prominent figures who make no pretense of familiarities with the technicalities of legal procedure and the fine points of substantive law. In this respect the Iraq War Tribunal (IWT) held in Istanbul in 2005 was more characteristic, pronouncing on the law and offering recommendations on the basis of a politically and morally oriented assessment of evidence by a jury of conscience presided over by the acclaimed Indian writer and activist Arundhati Roy and composed of a range of persons with notable public achievements, but without claims to expert knowledge of the relevant law, although extensive testimony by experts in international law did give a persuasive backing to the allegations of criminality. Also unlike KLWCT, the IWT mad no pretense of offering a defense to the charges.

Tribunals of ‘Conscience’ or of ‘Law’?

It raises the question for populist jurisprudence as to whether ‘conscience’ or ‘law’ is the preferred and more influential grounding for this kind of non-governmental initiative. In neither case, does the statist-oriented mainstream media pause to give attention, even critical attention. In this regard, only populist democratic forces with a cosmopolitan vision will find such outcomes as Kuala Lumpur notable moves toward the establishment of what Derrida called the ‘democracy to come.’ Whether such forces will become numerous and vocal enough remains uncertain. One possible road to greater influence would be to make more imaginative uses of social networking potentials to inform, explain, educate, and persuade.

This recent session of the Kuala Lumpur War Crimes Tribunal offers a devastating critique of the persisting failures of international criminal law mechanisms of accountability to administer justice justly, that is, without the filters of impunity provided by existing hierarchies of hard power. So whatever the shortcomings of the KLWCT it definitely moved to close the criminal justice gap that now protects what might be called ‘geopolitical criminals’ from accountability for their crimes against peace and crimes against humanity, and this is a move, however haltingly, toward global justice and the global rule of law.

Ever since German and Japanese surviving leaders were prosecuted after World War II at Nuremberg and Tokyo, there has been a wide abyss separating the drive for criminal accountability on the part of those who commit crimes against peace, crimes against humanity, war crimes from the realities of world politics. The law is supposed to push toward consistency of application, with the greatest importance attached to holding accountable those with the greatest power and wealth. The realities of world politics move in the opposite direction, exempting from criminal accountability those political actors that play dominant roles. In a sense the pattern was encoded in the seminal undertakings at Nuremberg and Tokyo that assumed the partially discrediting form of ‘victors’ justice.’ Surely the indiscriminate bombings of German and Japanese cities by Allied bomber fleets and the dropping of atomic bombs on Hiroshima and Nagasaki were ‘crimes’ that should have been investigated and punished if the tribunals had been fully ‘legal’ in their operations. It was the case, especially in Tokyo, that the tribunal allowed defendants to be represented by competent lawyers and that the judges assessed fairly the evidence alleging criminality, producing dissenting opinions in the Japanese proceedings and there was an acquittal at Nuremberg. In effect, there was a measure of procedural fairness in these trials. Without doubt those who were accused of crimes did engage in activity that was legally permissible and important for the future of world order to criminalize through findings of guilt and impositions of punishment, but this outcome was flawed to the extent that victors were not subject to comparable standards of accountability.

There was a second message arising from these trials: that winning side by conducting trials of this kind takes advantage of the opportunity to reinforce claims as to the justice of historical verdicts by pronouncing on the criminality of losers while overlooking the criminality of victors. There was also a third message that tries to overcome the flaw of double standards. It has been called ‘the Nuremberg promise,’ and involves a commitment by the victors in the future to abide by the norms and procedures used to punish the German and Japanese surviving military and political leaders. In effect, to correct this flaw associated with victors’ justice by making criminal accountability in the future a matter of law applicable to all rather than a consequence of the outcome of wars or a reflection of geopolitical hierarchy.

The Chief Prosecutor at Nuremberg, Justice Robert Jackson (excused temporarily from serving as a member of the U.S. Supreme Court), gave this promise an enduring relevance in his official statement to the court: “If certain acts and violations of treaties are crimes, they are crimes whether the United States does them or whether Germany does them. We are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.” These words are repeatedly quoted by peace activists, yet ignored by political leaders who took no notice of either the original flaw at Nuremberg or the obligation to remove it. Since 1945 crimes by the victors in conflict have continued to be overlooked by international criminal law, while prosecutions reflecting geopolitical leverage have kept happening without any concerted intergovernmental or UN effort to correct the imbalance. Since the end of the Cold War implementation of criminal responsibility has been increasingly imposed on losers in world politics, including such leaders as Slobadan Milosevic, Saddam Hussein, and Muammar Qaddafi each of whom were deposed by Western military force, and either summarily executed or prosecuted.

This dual pattern of criminal accountability that cannot be fully reconciled with law or legitimacy has given rise to several reformist efforts. Civil society and some governments have favored a less imperfect legalization of criminal accountability, and raised liberal hopes by unexpectedly achieving the establishment of the International Criminal Court in 2002 through the extraordinary efforts of a global coalition of NGOs and the commitment of a group of middle powers. Fearful of losing their impunity geopolitical heavyweights such as the United States, China, India, and Russia have refused to sign on to the ICC. Yet this and other formal initiatives have not yet seriously impinged on the hierarchal realities of world politics, which continue to exhibit an embrace of the Melian ethos when it comes to criminal accountability: “the strong do what they will, the weak do what they must.” Such an ethos marked, for Thucydides, unmistakeable evidence of Athenian decline, but for contemporary realists a different reading has been prevalent, underpinning political realism, contending that hard power calls the shots in history, and the losers have no choice but to cope as best they can. Double standards persist: the evildoers in Africa are targets of prosecutors, but those in the West that wage aggressive war or mandate torture as national policies continue to enjoy impunity as far as formal legal proceedings are concerned.

The existence of double standards is part of the deep structure of world politics. It was even given constitutional status by being written into the Charter of the United Nations that permits the five permanent members of the UN Security Council, that is the winners in 1945, to exercise a veto over any decision affecting the peace and security of the world, thereby exempting the world’s most dangerous states, being the most militarily powerful and expansionist, from any obligation to uphold international law. Such a veto power, while sounding the death knell for the UN in its core role of war prevention based on law rather than geopolitics, is probably responsible for keeping the Organization together through times of intense geopolitical conflict. Without the veto, undoubtedly the West would

have managed to push the Soviet Union and China out the door during the Cold War years, and the UN would have disintegrated in the manner of the League of Nations, which after the end of World War I converted Woodrow Wilson’s dream into a nightmare. Beyond this, even seen through a geopolitical optic, the anachronistic character of the West-centric Security Council is a remnant of the colonial era. 2011 is not 1945, but the difficulty of achieving constitutional reform means that India, Brazil, Turkey, Indonesia, and South Africa seem destined to remain permanent ladies in waiting as the UN goes about its serious male business. What this means for UN authority, including its sponsorship of the politics of individual criminal accountability, is that all that is ‘legal’ is not necessarily ‘legitimate.’

My argument seeks to make two main points: first, double standards pervade the application of international criminal law eroding its authority and legitimacy; and secondly, those geopolitical hierarchies that are embedded in the UN framework lose their authority and legitimacy by not adapting to changing times and conditions, especially the collapse of the colonial order and the rise of non-Western centers of soft and hard power.

There are different kinds of efforts to close this gap between the legal and the legitimate in relation to the criminality of political leaders and military commanders. One move is at the level of the sovereign state, which is to encourage the domestic criminal law to extend its reach to cover international crimes. Such authority is known as Universal Jurisdiction (UJ), a hallowed effort by states to overcome the enforcement weaknesses of international law, initially developed to deal with the crime of piracy, interpreted as a crime against the whole world. Many liberal democracies in particular have regarded themselves as agents of the international legal order, endowing their judicial system with the authority to apprehend and prosecute those viewed as criminally responsible for crimes of state. The legislating of UJ represented a strong tendency during the latter half of the twentieth century in the liberal democracies, especially in Western Europe. This development reached public awareness in relation to the dramatic 1998 detention in Britain of Augusto Pinochet, former ruler of Chile, in response to an extradition request from Spain where criminal charges had been judicially approved. The ambit of UJ is wider than its formal implementation as its mere threat is intimidating, leading those prominent individuals who might be detained and charged to avoid visits to countries where such claims might be plausibly made. As might be expected, UJ gave rise to a vigorous geopolitical campaign of pushback, especially by the governments of the United States and Israel reacted with most fear to this prospect of criminal apprehension by foreign national courts. As a result of intense pressures, several of the European UJ states have rolled back their legislation so as to calm the worries of travelers with tainted records of public service!

There is another approach to spreading the net of criminal accountability that has been taken, remains controversial, and yet seems responsive to the current global atmosphere of populist discontent. It involves claims by civil society, by the peoples of the world, to establish institutions and procedures designed to close the gap between law and legitimacy in relation to the application of international criminal law. Such initiatives are appropriately traced back to the 1966-67 establishment of the Bertrand Russell International Criminal Tribunal that examined charges of aggression and war crimes associated with the American role in the Vietnam War. The charges were weighed by a distinguished jury composed of moral and cultural authority figures chaired by Jean-Paul Sartre. The Russell Tribunal was derided at the time as a ‘kangeroo court’ or a ‘circus’ because its conclusions could be accurately anticipated in advance, its authority was self-proclaimed and without governmental approval, it had no control over those accused, and its capabilities fell far short of enforcement. What was overlooked in such criticism was the degree to which this dismissal of the Russell experiment reflected the monopolistic and self-serving claims of the state and state system to control the administration of law, ignoring the contrary claims of society to have law administered fairly in accord with justice, at least symbolically. Also ignored by critics was the fact that only such initiatives could overcome the blackout of truth achieved by the geopolitics of impunity. The Russell Tribunal may not have been ‘legal’ as understood from conventional governmental perspectives, but it was ‘legitimate’ in responding to double standards, by calling attention to massive crimes and dangerous criminals who otherwise enjoy a free pass, and by providing a reliable and comprehensive narrative account of criminal patterns of wrongdoing that destroy or disrupt the lives of entire societies and millions of people. As it happens, these societal initiatives require a great effort, and only occur where the criminality seems severe and extreme, and where a geopolitical mobilization precludes inquiry by established institutions of criminal law.

It is against this background that we understand a steady stream of initiatives that build upon the Russell experience. Starting in 1979, the Basso Foundation in Rome sponsored a series of such proceedings under the rubric of the Permanent Peoples Tribunal that explored a wide variety of unattended criminal wrongs, including dispossession of indigenous peoples, the Marcos dictatorship, Armenian massacres, self-determination claims of oppressed peoples. In 2005 the Istanbul World Tribunal on Iraq inquired into the claims of aggression, crimes against humanity, and war crimes associated with the U.S./UK invasion and occupation of Iraq, commencing in 2003, causing as many as one million Iraqis to lose their lives, and several million to be permanently displaced from home and country. In the last several weeks the Russell Tribunal on Palestine, a direct institutional descendant of the original undertaking, held a session in South Africa to investigate charges of apartheid, as a crime against humanity, being made against Israel. In a few days, the Kuala Lumpur War Crimes Tribunal will launch an inquiry into charges of criminality made against George W. Bush and Tony Blair for their roles in planning, initiating, and prosecuting the Iraq War, to be followed a year later by a subsequent inquiry into torture charges made against Dick Cheney, Donald Rumsfeld, and Alberto Gonzales. I intend to write subsequently about each of these proceedings.

Without doubt such societal efforts to bring at large war criminals to symbolic justice should become a feature of the growing demand around the world for real democracy sustained by a rule of law that does not exempt from responsibility the rich and powerful whether they are acting internally or internationally.

The death of the despised despot who ruled Libya for forty-two years naturally produced celebrations throughout the country. Muammar el-Qaddafi’s end was bloody and vindictive, but we should remember that his rants against his own people—and his violent repression of what was initially a peaceful uprising—invited a harsh popular response. Recalling W.H. Auden’s famous line, “Those to whom evil is done/do evil in return,” it is almost inevitable in the absence of strong moral and political discipline, which was not present, that when a leader refers to his opponents as “rats” and pledges to hunt them down house by house, the stage is set for the unacceptable kind of retribution that played out recently in Sirte where NATO air strikes leveled the city and anti-Qaddafi forces executed at least 53 Qaddafi loyalists. It is an ominous warning sign for the future that this massacre at Sirte along with the execution and burial of Qaddafi should have exhibited such vengeful and undisciplined behavior, raising renewed doubts about the character and approach of Transitional National Council leadership, although there still exist possibilities for redeeming this loss of confidence.

These unfortunate happenings make overall accountability for war crimes an early test of whether the TNC will yet prove capable of managing the formation of a political and morally acceptable governmental structure. Will the TNC undertake investigations of the alleged wrongdoings of its own forces in a manner that corresponds with international standards, or will such inquiry be avoided because such an international confidence-raising process would clearly internal factionalism in which any finger-pointing will seem like an encouragement of ethnic and tribal conflict? Will the TNC cooperate with the International Criminal Court to ensure that those charged with war crimes in the service of the Qaddafi regime will receive a fair trial? At the same time there is reason to view with a cynical eye the demands of self-righteous NGOs in the West that seem to expect from Libya what the liberal democratic regimes of the West refuse to do. It should be appreciated in this regard that the United States

goes to extraordinary lengths to exempt its soldiers and leaders from potential criminal accountability while it pushes hard to have its enemies subject to the harsh severity of international criminal law. Double standards pervade. As with so much that involves North Africa after the glories of the Arab Awakening, all roads to the future seem destined to have many twists and turns, as well as treacherous potholes.

The leadership vacuum in Libya is not likely to be filled anytime

soon. We don’t know whether tribal or regional loyalties will emerge as primary political identities now that the great unifier—hostility to

the Qaddafi regime—can no longer suppress antagonistic goals and ambitions. The TNC lent international credibility to the anti-Qaddafi forces, but much of the fighting in the last stages of the struggle was under the control of semiautonomous militia commanders that seemed a law unto themselves. We will soon learn whether the TNC can sufficiently represent the collective will of Libyans during the interim process that is needed before establishing an elected government able to draft a new constitution. Its first attempt to establish a new unity was premised on a call to implement political Islam. The Chairman of the TNC, Mustafa Adbel-Jalil, made the following strong assertion along these lines at the victory celebration in Benghazi: “We are an Islamic country. We take the Islamic religion

as the core of our new government. The constitution will be based on our Islamic religion.”

Some pessimists have contended that Libya’s future is prefigured by

the chaotic violence that befell Somalia after the overthrow of

dictator Mohamed Siad Barre in 1991, a tragic set of national circumstances that have persisted ever since. But on a more hopeful note, it is worth observing that the fall of Qaddafi—unlike that of Hosni Mubarak, whose overthrow has not yet altered

the power structure in Egypt—gives the victorious Libyan opposition a

seemingly clean slate that could be more receptive to genuine democratic nation-building if such a political will emerges. Libyans have given themselves this opportunity that rarely comes along in history to achieve a real revolutionary transformation of their political, economic and cultural life. Thus, it could turn out paradoxically to be helpful, rather than an impediment, to observe that Qaddafi left no institutional infrastructure behind upon which to construct a modern state. What has happened in Libya, unlike Egypt, is for better or worse a total regime change.

Libya starts out on this new path with some additional major advantages, most obviously oil and a relatively

small population. An important test in the months ahead will be the

extent to which the new leadership restores normalcy to the economy without mortgaging the national wealth to foreign predators, corporate, financial, and governmental. Of course, in the background is the sense that NATO was integral to the overthrow of Qaddafi and may expect more than a thank-you note. Already there are media murmurs about great business opportunities for the West in the new Libya, including the challenge of rebuilding what NATO destroyed, which seems like a disturbing vindication of Naomi Klein’s groundbreaking book, The Shock Docrtrine, a devastating critique of the contemporary logic of the neoliberal world economy.

Considering Libyan experience from an international perspective raises several additional concerns. The public appraisal of NATO’s intervention will be mainly shaped by whether Libya emerges as a stable, democratic, and equitable nation. This will not be knowable for years, but aspects of the intervention already make Libya a troubling precedent no matter what the future of the country. The UN Security Council, which authorized the use of force by way of an application of the recently affirmed principle known as “responsibility to protect” or R2P. The five abstaining states were either duped or complacent,

and likely both. The authorizing Security Council Resolution 1973 was broadly framed by reference to establishing a no-fly zone by all necessary means, with the justification for force at the time associated with protecting the population of Benghazi from an imminent massacre. Yet this restricted mandate was disregarded almost from the outset. NATO forces were obviously far less committed to their assigned protective role than to making sure that the balance of forces in the struggle for the future of Libya would be tipped in the direction of the insurrection. If this intention had been clear at the outset, it is almost certain that Russia and China would have vetoed the UN resolution. During the debate these two states expressed their grave misgivings and suspicions about encroaching on Libya’s sovereignty, and were joined in the expression of such doubts by India, Brazil and Germany who also came to abstaining when it came to voting in the Security Council. If NATO’s broader intention was manifest Chinese and Russian vetoes were a virtual certainty.

Of course, there was a dilemma present. If NATO had disclosed its goals there would have been no UNSC authorization, and the Benghazi massacre would have appeared to be a humanitarian catastrophe invited by UN inaction. If NATO had circumscribed its intervention in the manner agreed upon, then a lengthy civil war might have followed, and also brought about a humanitarian disaster for the people of Libya. The perils of intervention have to be balanced against the perils of noninternvention in each instance, but if some tasks of global governance entrusted to the United Nations are to evolve in a constitutionally responsible way, then the minimum to expect is an honest disclosure of intent by member states pushing for intervention, a vigilant monitoring by the authorizing UN organ of any use of force, and a scrupulous regard by implementing actors for the limits imposed on a mandate to use force.

From these perspectives, it is extremely disturbing that a restricted UN mandate was totally ignored, and that the Security Council did not even bother reconsider the original mandate or censure NATO for unilaterally expanding the scope and nature of its military role. By ignoring the UN’s limits, NATO may have diminished the prospects for future legitimate uses of the R2P principle, and whether this is good or bad is difficult to say in the abstract.

There are several dimensions of this concern. To begin with, the UN Charter was drafted to minimize the legitimate role of force in world politics, making war a last resort, and then only in strict circumstances of self-defense. To this is added the secondary undertaking of the Charter, which is to assure that the UN itself is bound by Article 2(7) to refrain from intervening in matters essentially within the domestic jurisdiction of states unless under exceptional conditions it is decided as necessary to maintain international peace and security. The NATO intervention seems impossible to reconcile with either of these two core principles of the UN Charter, which is the constitutional framework that is supposed to guide the behavior of the UN. It is true that these principles have been eroded by practice since their enactment in 1945. Human rights has become such a strong dimension of world order as to take precedence over sovereign rights in certain situations of extreme abuse, which helps explain the rise of the R2P norm over the last decade, especially in the aftermath of the controversial NATO Kosovo War of 1999. Despite these developments the Charter still provides the operative guidelines for uses of force. In this regard, it might have been legally and morally acceptable, given the circumstance prevailing in Libya when the authorizing resolution was adopted on March 17, 2011, to mount a narrowly conceived protective mission—although it is worth noting that even at the moment of approval, there was widespread skepticism at the UN, either because some members distrusted the pro-interventionist reassurances of the United States and its European partners or anticipated that pressures on the ground would likely produce mission creep as the locus of the violence shifted beyond Benghazi.

The Libya experience raises deeper questions about reliance on the R2P norm as a basis of principled UN action on behalf of a vulnerable people endangered by abusive behavior of their own government. Some doubts already existed about the selectivity of the Libyan application of the norm, especially given the UN’s failure to lift a finger on behalf of the beleaguered civilian population of Gaza, which has suffered under a long and punitive Israeli blockade, with the UN even supporting the Israeli position when the blockade was being challenged by civil society activists seeking to deliver humanitarian assistance directly to the people of Gaza. But aside from this glaring example of double standards, there is also the widespread sense that in Libya, R2P was quickly, and without serious debate, transformed into an opportunity to destroy and oust, with an as yet undetermined array of harmful consequences.

If such protective undertakings are to achieve credibility in the

future, they must become detached from geopolitics and operationalized according to a robust regime of law that treats equals equally. Perhaps the most practical mechanism for reaching these presently unattainable goals would be the establishment of a UN Emergency Force that could only be activated by a two-thirds vote in either the Security Council or General Assembly, and not ever be subject to veto. Such a force would need to be funded independently of national governments, possibly by imposing a tax on international air flights or currency transactions. However sensible, such an arrangement will not be easy to bring into being, precisely because its existence would threaten current geopolitical prerogatives that depend on self-interested motivations of leading states. And even this recommended UNEF framework could be manipulated. But at least if it existed there would be a greater prospect that authorizing guidelines for humanitarian uses of force under UN auspices would be respected, that compliance would be supervised, and that more consistent practice would replace the current brand of humanitarian diplomacy that is deformed by the prevalence of double standards.

Against such a background, we can only wish that the Libyans will defy pessimistic expectations, and manage to establish a viable and independent democratic state that is respectful of human rights and energetic in its efforts at reconstruction, without becoming overly

hospitable to foreign investors and companies. After such a

devastating air campaign of some 20,000 sorties, the NATO countries should have the decency to stand aside and respect the Libyans’ inalienable right of self-determination. It is a sad commentary on the global setting that to set forth these hopes for the future of Libya and its long suffering population seems like an utopian indulgence!

The Arab Spring (and its troublesome, yet still hopeful, aftermath in Egypt), intervention in Libya, nonintervention in Syria and Bahrain, drone military operations in Pakistan, Yemen, Somalia, the influx of unwanted immigrants and walls of exclusion, and selective applications of international criminal law draw into question the most basic of all ideas of world order: the sovereignty of territorial states, and its limits. Also, at issue, are the closely related norms of international law prohibiting intervention in the internal affairs of states and affirming the fundamental right of self-determination as an inherent right of all peoples. These are basic rules of international order acknowledged in the United Nations Charter, taking the form of prohibiting the Organization from intervening in matters ‘essentially within domestic jurisdiction’ and through affirmations of the right of self-determination.

The latter is only aspirational in the Charter, but becomes obligatory as a result being posited as common Article 1 of the two human rights Covenants and being listed as one of seven principles enumerated in the authoritative Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States (UN General Assembly Resolution 2625, 1970).

At the same time, as Ken Booth provocatively pointed out almost 20 years ago one of the great failings over the centuries of the Westphalian framework of world order (based on treaties of peace in 1648 concluded at the end of the Thirty Years War that are treated as establishing the modern European system of territorial states premised on the juridical ideal of sovereign equality) was associated with sovereign prerogatives to possess unconditional authority in state/society relations. Booth showed that respect for sovereignty had legitimated the inner space of states as a sanctuary for the commission of what he called ‘human wrongs,’ that is, non-accountable and cruel abuses of persons subject to territorial authority. Historically, the West claimed rights of intervention, often in the name of ‘civilization,’ in the non-West, particularly in the decaying Ottoman Empire of the 19th and early 20th centuries. The great wakeup experience, at least rhetorically for the liberal West, was the non-response at the international level to the lethal internal persecutions in Nazi Germany during the 1930s, which were not only within a sovereign state, but within a country with a high claim to be a major embodiment of Western civilization.

The responses after World War II, mainly expressed via international law, consisted of the Nuremberg and Tokyo trials of surviving German and Japanese leaders, the adoption of the Genocide Convention, and the negotiation and approval of the Universal Declaration of Human Rights (UDHR), as well as the establishment of the United Nations itself. These were well-intentioned, although somewhat ambivalent, gestures of global responsibility that generated criticisms and even suspicions at the time: the Nuremberg and Tokyo standards of individual accountability for crimes were only imposed by the coalition of victors in World War II upon the losers, exempting the Allied Powers from any legal responsibility for the terror bombings of German and Japanese cities and the atomic bombing of Hiroshima and Nagasaki; the Genocide Convention seemed deficient due to its failure to provide mechanisms for enforcement; the UDHR was drafted under the sway of Western liberal individualism as a hegemonic orientation, and was only endorsed in the form of a non-binding ‘declaration,’ a clear signal that no expectation of enforcement existed; as well, the legitimacy of the colonial structures of foreign ruler were not questioned until challenged by a series of populist uprisings throughout the non-West that produced some bloody wars as in Indochina and Algeria..

In passing, it should be observed that the West never respected the sovereign rights of the peoples of the non-West until it was forced to do so. Whether it was European colonialism that extended its reach throughout Africa and Asia or the assertions of American hegemony over Latin America beneath the banner of the Monroe Doctrine the pattern was one based on relations of hierarchy, not equality. This was accompanied by a refusal to extend the Westphalian writ of mutual respect for sovereign rights beyond the Euro-American regional domain until the imperial order began to crumble after World War I. First, the Good Neighbor policy seemed to reaffirm sovereignty for Latin America, but only within limits set by Washington, as the Cold War era of covert and overt interventions confirm. In the Middle East and Africa various experiments with colonial halfway houses were undertaken within the framework of the League of Nations, and formalized as the Mandates System. Secondly, after World War II a variety of nationalist movements and wars of national liberation broke the back of European colonialism as an acceptable political arrangement, and the idea of the equality of sovereign states was globalized as a matter of juridical doctrine, although not geopolitically.

During the last six decades the world has moved forward in pursuit of global justice, or has it? On the one side, human rights has matured beyond all expectations, and to some degree exerts a generalized moral and political force subversive of national sovereignty by validating a higher law that exists above and beyond the legal order of the state. This subversive thrust is reinforced by the development and institutionalization of international criminal law, enforcement of accountability claims against such pariah leaders as Milosevic and Saddam Hussein, as well as lesser figures in the entourage of tyrants, the establishment of the International Criminal Court, arrest warrants for the likes of el-Bashir of Sudan and Qaddafi. And, perhaps, most significantly in relation to global justice, the rise of respected transnational NGOs that have created a somewhat less selective pressure for implementation of human rights norms, but one that remains weighted toward political and civil rights that are given priority in the liberal democracies of the North, and one that gives little attention to the economic, social, cultural, and collective rights that possess primary importance to developing societies in the South. In actuality, the UDHR was correct in its integration of all forms of human rights in a single coherent legal instrument, but it became a casualty of the Cold War ideological tensions between capitalism and socialism, with one side championing a liberal individualist understanding of human rights and the other side a collective conception.

And yet, these various moves toward what might be called ‘humanitarian globalization’ achieved at the expense of older conceptions sovereignty are too often subordinated to the realities of geopolitics. That is, the application of legal standards and the assertion of interventionary claims remain imbalanced: the West against the rest, the North against the South, the strong against the weak. Even the supposedly globally oriented human rights NGOs devote most of their attention to non-West violations when it comes to alleged infractions of international criminal law. Selective applications of law and morality tarnish the integrity of law and morality that is premised upon fidelity to principles of equality and reciprocity. This makes supposedly challenges to sovereignty suspect, but are they also worthless, or as some argue, worse than worthless?

There are two contradictory modes of response. The liberal answer is to insist that progress in society almost always occurs incrementally, and doing what is possible politically is better than throwing up one’s hands in frsutration, and doing nothing. So long as targets of intervention and indicted leaders are given fair trials, and are convicted on the basis of the weight of the evidence, such results should be affirmed as demonstrating an expanding global rule of law, and serving the interests of global justice. The fact that the principal states intervene at will and enjoy impunity in relation to international criminal law, remains a feature of world politics, and is even given a prominent constitutional status at the UN by granting a veto power to the five permanent members of the Security Council.

The critical response argues that the prevalence of double standards contaminates law, and makes it just one more instrument of power. The authority and legitimacy of law depends on its linkage to justice, not power. To enforce prohibitions on the use of aggressive force or the commission of crimes of state only on losers and the weak is implicitly to cede the high moral and legal ground to the richest and most dangerous political actors. It makes available a humanitarian disguise for abusive behavior in a post-colonial global setting, providing pretexts for disregarding the dynamics of self-determination, which is the legal, political, and moral lynchpin of a system of sovereign states detached from the hierarchies of geopolitics.

In a world beset by contradictions, there are only hard choices. There seem to be three kinds of situation that somewhat transcend this tension between liberal and critical perspectives: a severe natural disaster that cannot be addressed by national capabilities ( Asian tsunami of 2004; Haiti earthquake of 2010) acute or imminent genocide as in Rwanda (1994) where a small international effort would have seemed likely to avert the deaths of hundreds of thousands; a mandate to act issued by the UN Security Council as in Libya. In each instance, there are risks, uncertainties, and unanticipated effects; especially worrisome is the recent pattern of authorizations of force by the Security Council. Both in the Gulf War (1991), to some extent the sanctions currently imposed on Iran, and now with the Libyan intervention, the mandate to use force is stretched beyond the limits specified in the language of authorization. In the Libyan case, Security Council Resolution 1973 the initial justification for intervention was justified by reference to an emergency situation endangering the lives of many Libyan civilians, but converted operationally and massively by NATO into a mandate to achieve regime change in Tripoli by dislodging the Qaddafi leadership. No effort was made to secure a broader mandate from the Security Council and nothing was done to insist that NATO operations be limited by the terms of the original UN authorization.

What can be done? We have little choice but to cope as best we can with these contradictions, especially when it comes to uses of force in the course of what is labeled as a ‘humanitarian intervention’ or an application of the ‘right to protect’ norm. I would propose two ways to turn the abundance of information on these issues into reliable knowledge, and hopefully thereby, to engender greater wisdom with respect to the specifics of global policy and decision-making. First, acknowledge the full range of realities in international life, including the absence of equal protection of the law, that is, judging claims and deciding on responses with eyes wide open by being sensitive to the context, including its many uncertainties. With these considerations in mind adopt a posture of reluctance to use force except in extreme cases. Secondly, presume strongly against reliance on hard power resolutions of conflict situations both because the costs almost always exceed the estimates of those advocating intervention and because military power during the period of the last sixty years is rarely able to shape political outcomes in ways that are on balance beneficial for the society on whose behalf the intervention is supposedly taking place.

When it comes to severe human rights abuses somewhat analogous considerations apply. In almost every instance, deference to internal dynamics seems preferable to intervention-from-without, while soft power interventions-from-below-and-without are to be encouraged as expressions of emergent global democracy. Victimization and collective acute vulnerability should not be insulated from assistance by rigid notions of sovereignty, but nor should self-determination be jeopardized by the hypocritical moral pretensions of hegemonic states. This is inevitably a delicate balance, but the alternative is to opt for extremes of passivity or activism.

In effect, to the extent possible, global challenges to sovereignty should take the form of transnational soft power tactics of empathy as identities of persons around the globe become as globalized (and localized) as markets. The recent furor aroused by Freedom Flotilla II is illustrative of an emerging tension between the role of sovereign states in defining the contours of law and morality and that of popular forces mobilized on behalf of those unjustly suffering and neglected by the world of states. Ideally, the UN should act as a mediating arbiter, but the UN remains a membership organization designed to serve the diplomacy of sovereign states and the states system, and is generally hostile to the claims of global civil society however well founded. One attractive proposal to endow the UN with a more robust mediating role is to establish some form of Global Parliament, perhaps building on the experience of the European Parliament that has evolved in authority and political weight over the decades. A more relevant innovation consistent with the above analysis would be the establishment of a UN Humanitarian Emergency Peace Fund with independent funding, an authorizing procedure that was not subject to a veto, and an operational discipline that ensured that the implementation of a mandate to act forcibly did not exceed its boundaries.

The International Criminal Court has formally agreed that warrants should be issued for the arrest of Col. Muammar Qaddafi, as well as his son, Seif al-Islam, who has been acting as Prime Minister along with Libya’s intelligence chief, Abdullah Senussi. These three Libyan leaders are charged with crimes against humanity involving the murder, injuring, and imprisoning of Libyan civilians between Feburary 10-18, 2011, the first days of the uprising and prior to NATO’s military involvement. The ICC judge speaking on behalf of a three-judge panel authorized the issuance of the arrest warrants, Sanji Monogeng of Botswana, on the basis of the evidence presented by the prosecutor that ‘reasonable grounds’ existed to support the charges contained in the outstanding indictments against these three individuals. Judge Monogeng clarified the ruling by explaining that issuing an arrest warrant was meant to convey the conclusion that sufficient evidence of criminality existed to proceed with the prosecution, but it is not intended to imply guilt, which must be determined by the outcome of a trial. The ICC assessment is likely to withstand scrutiny so far as the substance of the accusations directed at the Qaddafi leadership are concerned. Qaddafi clearly responded with extreme violence, reinforced by genocidal rhetoric, to the popular challenges directed against the Libyan government, which certainly seems to qualify as crimes against humanity. But I am led to question why such an effort to arrest and indict was pushed so hard at this time.

The timing of the indictment, and now the arrest warrants, arouses strong suspicions, and not just of bad judgment! It is relevant to recall that in the course of NATO’s Kosovo War in 1999 against Serbia, the Serbian president, Slobodan Milosevic, was indicted by another European-based international tribunal–the special ad hoc International Criminal Tribunal for Former Yugoslavia. Are we now to expect that whenever NATO has recourse to war the political leader heading its opposition will be charged with international crimes while the fighting ensues? How convenient! Lawfare in the service of warfare!

Rather than a matter of convenience, the motivation seems more sinister. Criticism is deflected from NATO’s own lawlessness. In both of these instances, NATO had itself has resorting to war unlawfully, engaging in what was designated at Nuremberg as a ‘crime against peace,’ and held by that tribunal to be the greatest of war crimes embracing within itself both crimes against humanity and gross violations of the laws of war (war crimes). In the Kosovo War NATO acted without a mandate from the UN, thereby violating the UN Charter’s core principle prohibiting non-defensive uses of force unless authorized by the Security Council. In Libya there was such an initial authorization to protect civilians by establishing a no fly zone (Security Council Resoultion 1973, 17 May 2011), but the NATO mission as executed almost immediately grossly exceeded the original mandate, and did little to hide its unmandated goal of regime change in Tripoli by way of ending Qaddafi’s role as ruler and thereby achieving victory for opposition forces in a civil war. It is certainly worthy of comment that in both of these wars initiated by NATO the leader of a country attacked was targeted for criminal prosecution before hostilities has ended. Even the Allies in World War II waited until after the end of combat before trying to impose their version of ‘victors justice’ on surviving defeated German and Japanese leaders.

A somewhat similar manipulation of criminal accountability occurred in Iraq a few years ago. There the American led aggressive war waged against Iraq in 2003 was quickly followed by a carefully planned and orchestrated criminal prosecution, stage managed behind the scenes by the US occupation commanders), followed by the execution of Saddam Hussein (and his close associates). The Iraqi trial was politically circumscribed so as to exclude any evidence bearing on the close and discrediting strategic relationship maintained between the United States and Iraq during the period of Saddam Hussein’s most serious instances of criminality (genocidal operations against Kurdish villages), as well as by disallowing any inquiry into American criminality associated with the attack on Iraq and subsequent allegations of criminal wrongdoing in response to Iraqi resistance to military occupation. This American potential criminality was never discussed, much less investigated in a responsible manner.

What converts these separate instances into a pattern is the Eurocentric (or West-centric) selectivity evident in most recent efforts to enforce international criminal law. It should be noted that this selectivity is made more objectionable by the impunity accorded to European, American, and Israeli leaders. Double standards so pervasively evident in this behavior undermine the authority of law, especially in relation to a subject-matter as vital as war and peace. Unless equals are treated equally most of the time, what is called ‘law’ is more accurately treated as ‘geopolitics.’

The geopolitical nature of this approval of arrest warrants just issued by the ICC is unintentionally confirmed when it is acknowledged by NATO officials that it will not be possible to arrest Qaddafi unless in the unlikely event that he is captured by the Rebels. Governmental representatives in Washington admitting this, have declared that the warrants will nevertheless be useful in forthcoming UN debates about Libyan policy, presumably to push aside any objections based on the failure by NATO to limit military operations to the no fly zone initially authorized by the Security Council. It should be remembered that the initial authorization in SC Resolution 1973 was itself weakened by five abstentions, including China and Russia, and further, by South Africa that voted with the majority, while expressing strong objections to the subsequent undertaking. One wonders whether China and Russia would not have used their veto had they anticipated how far beyond what was insisted on limited humanitarian purposes by the proponents of the use of force would the actual operation become. In effect, to overcome any impression of unlawfulness on NATO’s part it is useful to demonize the adversary, and an opportune way to reach this goal is to put forward premature accusations of severe criminality.

Of course, as has been pointed out more than once, there was an embedded hypocrisy in the central argument put forward by the states seeking a UN green light to intervene in Libya, which was based on the responsibility to protect norm that supposedly confers a duty on the international community to protect civilian populations that are being subjected to severely abusive behavior. Too obvious contradictions were present. Why not Syria in the current regional setting? And even more starkly, why not Gaza back in 2008-09 when it was being mercilessly attacked by Israel? The answers to such questions are ‘blowin’ in the wind.’

There are further more technical reasons in the present setting to challenge the timing of the arrest warrants. They seem legally and politically dubious. Legally dubious because the most serious criminality associated with the behavior of the Qaddafi regime during the conflict occurred after the ICC cutoff date of 18 February (e.g. the siege of Misrata). Why other than ulterior motivations was there this rush to prosecute? Politically dubious because there is now a new obstacle to diplomacy in a situation where the alternative seems likely to be a prolonged civil war. Negotiating space for an accommodation is definitely reduced by this implication of Qaddafi’s criminality that creates incentives for the Tripoli leadership to fight on as long as possible.

Perhaps, cynics would argue that law always reflects power, and of course they are correct to a certain extent. Progress in human affairs arises from a struggle against such pretensions. And the locus and nature of power is changing in the world: the West is losing its capacity to shape history and high technology warfare, upon which the West depends to enforce its will on the non-West, is losing its capacity to produce political victories (e.g. anti-colonial wars, Vietnam, Iraq, Afghanistan). This politicized use of the ICC in the course of the Libyan War offers an opportunity for those dedicated to global justice, especially in the Arab world, to insist that international law should no longer serve as a plaything for those who intervene with hard power in their region from the comfort zone of NATO headquarters.

Richard Falk

Richard Falk is an international law and international relations scholar who taught at Princeton University for forty years. Since 2002 he has lived in Santa Barbara, California, and taught at the local campus of the University of California in Global and International Studies and since 2005 chaired the Board of the Nuclear Age Peace Foundation. He initiated this blog partly in celebration of his 80th birthday.